Mobile phone provider must prove accuracy of its bills

The rights of mobile phone users have now been strengthened again by a judgement of the Regional Court of Augsburg of 24 April 2007, file number 3 O 678/06 (not yet final). According to the judgement of the Regional Court of Augsburg, the burden of presentation and proof for the use of services, in particular for the establishment of a connection, is in principle borne by the provider of telecommunications services (BGH NJW 2004, page 3183 ff.).

In the case at hand, a mobile phone provider demanded a total amount of almost 14,000.00 € from a customer with a D2-Fun tariff. Allegedly, these high costs were due to the use of so-called value-added services. However, the use of these value-added services was substantiatedly denied by the defendant. The plaintiff, on the other hand, was of the legal opinion that prima facie evidence supported the correctness of the disputed telephone bills. There were no indications of a technical failure of the automatic electronic fee collection system and the defendant had not alleged this.

However, the Augsburg Regional Court rejected the plaintiff's legal opinion.

The Regional Court expressly stated that it was up to the plaintiff to substantiate and, in case of denial, to prove that the respective contract with the respective provider of the value-added services from which the claim was derived had also been concluded (Schleswig-Holstein Higher Regional Court, order of 19.04.2006, reference 3 W 28/06).

The defendant had raised objections to the correctness of the claim within the 80-day period of § 7 para. 3 TDSV (Telecommunications Services Data Protection Ordinance). The defendant objected to the fact that he had not dialled the relevant connections himself and stated in detail which telephone calls he had not made. Furthermore, the plaintiff was requested by the defendant to immediately provide the full names and addresses of the operators of the corresponding value-added services. However, the plaintiff did not comply with this request.

The Regional Court of Augsburg, like the Regional Court of Stendal before it in its judgement of 18 August 2005, file number 22 S 51/05, was of the opinion that a telecommunications company which claims payment for so-called value-added services from the customer must present the customer with a telephone bill which enables the customer to dispute the contents of the bill in a qualified manner (likewise LG Trier, judgement of 6 July 2004, file number 1 S 104/04). However, the plaintiff had not done this. Without meeting its burden of substantiation and proof for the correctness of the telephone bills, the plaintiff did not respond to the defendant's substantiated objections. The plaintiff thus did not prove that the value-added services billed by it were actually used by the defendant.

In the opinion of the Regional Court of Augsburg, it was obvious from the defendant's objections that the defendant had been the victim of an unnoticed establishment of connections through surreptitious manipulation by third parties. In this respect, it was to be inferred from the legal concept of § 16 para. 1 TKV that the risk of an unnoticed establishment of connections was not to be borne by the subscriber (cf. BGHZ 158, 201-212). The Regional Court of Augsburg further argued that according to the plaintiff's billing, the defendant had had to make telephone calls on several days almost without interruption. From this circumstance, the Regional Court of Augsburg concluded that the prima facie case here was that these telephone calls could not all have been made by the defendant knowingly and willingly.

Since the plaintiff did not meet its burden of proof and could not prove that the defendant had knowingly and willingly used the value-added services billed by the plaintiff, the Augsburg Regional Court dismissed the plaintiff's claim for payment.

This ruling once again strengthens the rights of all mobile phone users. It is now up to the mobile phone provider to prove that all billed mobile phone calls were actually made knowingly and willingly by the mobile phone user. If a mobile phone provider does not comply with this obligation, it cannot successfully assert any claims for payment against the mobile phone user. 

If you would like legal advice on the above topic or on other areas of intellectual property law, IT law or other areas of civil law, Goldberg Rechtsanwälte will be happy to assist you. Of course, you can also contact us by e-mail viaE-Mail-Adresseinfo@goldberg.de .

Communicated by Attorney at Law Michael Ullrich, LL.M. (Information Law)
© Goldberg Attorneys at Law Wuppertal-Solingen 2007

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